Citation Nr: 1326941 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-02 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from June 2001 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter was previously before the Board in May 2010 and June 2012, at which times it was remanded for additional development. FINDING OF FACT Degenerative arthritis of the lumbar spine is etiologically related to the Veteran's military service. CONCLUSION OF LAW Degenerative arthritis of the lumbar spine was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary. Service Connection Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran has been diagnosed with degenerative arthritis of the spine (August 2012, based on x-rays, and February 2013); displacement of lumbar disc without myelopathy, and sciatica (November 2011); chronic lumbosacral strain (June 2010); lumbar spondylosis and spinal stenosis (March 2008); and right paramedian disk protrusion with mild narrowing of the inferior aspect of the right neural canal, and small central posterior annular tear with central disk protrusion (February 2008, based on MRI results). It is evident that the Veteran has a current low back disability, to include arthritis of the lumbar spine. Thus, he meets the first criteria for service connection, a current disability. Id. The Veteran claims that his back pain began in October 2004. He is competent to report on the onset of back pain. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). Notably, the Veteran's service treatment records for the period of 2004-2006 are unavailable to VA, despite efforts (as documented in the claims file) to locate them. The Board further finds that there is credible evidence of an in-service injury, occurring in October 2004. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The Veteran has consistently informed VA that he experienced back pain during an incident in October 2004 when he was loading heavy ordnance onto trucks in the field. Although he acknowledges that he did not seek medical treatment at that time, from that point forward he has experienced intermittent pain and been unable to lift anything over 20 or 30 pounds without pain. The Veteran indicated that his back pain worsened significantly in December 2006, despite the absence of any intervening accident or event to cause the worsening following his June 2006 separation. After the December 2006 episode, the effects of his back pain became more pronounced. He first sought treatment in 2008. In a June 2011 buddy statement, a soldier who served with the appellant in Korea indicated that the Veteran was put "on physical profile due to the lower back injuries he sustained with the 1-38 Field Artillery battalion." Reportedly the appellant also informed this soldier that he was having back pain, and this soldier witnessed the appellant regularly miss physical training and participate in alternate physical activities to mitigate pain. There is one statement that appears facially inconsistent with the Veteran's reports of in-service onset of back pain. He informed a February 2008 private treatment provider that his back pain began in December 2006. The Veteran clarified in a July 2012 statement that although he referred to a December 2006 onset at the February 2008 treatment, he was specifically referencing the onset of the "severe sharp back pain," but that the "light and occasional back pain started in 2004." Considering the Veteran's treatment record and statements together, the Board finds that there is credible evidence of an in-service onset of back pain. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The Veteran's assertions are facially plausible, and there is insufficient evidence to undermine their credibility. While the Board takes note of the February 2008 statement in which the Veteran described ongoing back pain since December 2006, the evidence supports his explanation that he was specifically referring to the onset of a more severe pain. Specifically, the Board finds that the June 2011 buddy statement, indicating a history of back pain in service, to support the Veteran's contentions. The Board also notes, as discussed in more detail below, the August 2012 examiner's opinion that at the time of the 2004 onset of symptoms, the appellant's pain was likely insufficient to make the Veteran believe that it warranted medical attention. Therefore, the Board finds that the evidence meets the second prong of service connection, an in-service injury. Holton, 557 F.3d at 1366. Finally, the Board finds that the probative medical nexus opinions of record indicate that the present disability is etiologically related to the October 2004 injury. The Veteran has been provided VA examinations in June 2010, August 2012, and February 2013. The June 2010 examiner did not attempt to provide an opinion at all, indicating that "[w]ithout any examinations and x-rays while he was in the service it would be speculation on the part of the examiner[] to attribute any current pain to []his military service." The February 2013 opinion was similarly speculative, indicating that although it was "possible that the Veteran suffered a back injury during his active duty," it was not possible to reach a conclusion without supporting service treatment records. Neither the June 2010 nor the February 2013 opinions are probative of the nexus issue. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not fully articulated or based on sound reasoning is not probative). The one probative VA opinion of record is found in the August 2012 examination report. That examiner considered the Veteran's history of active-duty onset of pain symptoms, and opined that the Veteran's current disability was at least as likely as not attributable to the onset of pain he experienced during active duty. The examiner found the Veteran's failure to seek treatment while on active duty to be reasonable, noting that "it is likely that his symptoms were transient[] and not severe enough" in 2004 to warrant medical treatment, but that the symptoms were the manifestations of his subsequently-diagnosed degenerative disease. The examiner noted that lifting heavy objects and intense physical activities can contribute [to] or facilitate degenerative disease, and that the degenerative process will continue to worsen with age. A November 2011 private physician opined that the current disability is related to a work injury occurring in 2004, based on the Veteran's history that his symptoms have continued since that time. The examiner does not provide a complete rationale in support, but does provide a basis for the opinion. Id. The Board finds that the November 2011 opinion is less probative of the issue than the August 2012 examiner's report, as the opinion does not fully document the rationale on which it is based, but nevertheless is sufficiently supported to be probative. Further, the opinion supports the August 2012 opinion that the current disability began during service Considering the August 2012 VA opinion and the November 2011 private opinion, the Board finds that the Veteran meets the third prong of service connection, a nexus between the in-service injury and the present disability. Holton, 557 F.3d at 1366. Therefore, service connection is warranted. ORDER Entitlement to service connection for a low back disability is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs